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LAG Hamburg: Agreed age limit of 65 years effective

A collective retirement age, the employment relationship "automatically" at the age of 65 Age ended, is effective. This is clear from both. § 14 para 1 sentence 2 No. 6 TzBfG .. as well as from § 10 AGG

The case:
The applicant was employed by the Hamburg High Bahn AG. On the employment relationship of the collective agreement of the Hamburg High Railways application, is governed by inter alia, that the working conditions at the age of 65 Life year end. The plaintiff requested the defendant to work on the 65th Beyond the age. He claimed that contrary to the collective age § 10 AGG.

The Labour Court upheld the action instead. On appeal the defendant raised the LAG to this decision and dismissed the action.

The reason:
The plaintiff against the defendant is not entitled to continued employment after age 65 Ans. The agreed age limit is in effect.

There is no diskrminierende ago, after the AGG unacceptable differentiation on grounds of age.
According to § 10 sentence 3 No. 5 AGG grds a different agreement. permitted, providing for the termination of employment without notice at a time when the employee can apply for a pension because of age. In general, a different treatment on grounds of age is admissible if it is objectively and reasonably justified by a legitimate aim. In addition, the means of achieving that aim must be appropriate and necessary.
§ 10 sentence 3 No. 5 AGG conformity with European law is a legal basis for contractual retirement age. These follow a regular labor market objectives, namely to promote the distribution of work between the generations and the reduction of unemployment. These objectives are in compliance with the rulings of the ECJ does not go beyond what is necessary to attain the objectives pursued. This is certainly the case if the wide margin of appreciation is taken into account, the Member States and social partners in the field of social and employment policy is available.
(LAG Hamburg, decision of 22/02/2011 AZ: 4 Sat 76/10)

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BAG: can Muslim workers claim to alcohol-free workplace have

Muslim employees may, under certain circumstances be entitled to refuse to work with alcoholic beverages, without them, this may be interpreted as a refusal to work.
may therefore be terminated them in such cases only because of persistent refusal to work if the employer can provide them as part of the operational organization to assign no other activity can do without getting into conflict with their religion. Employees must in such a case, of course, unsubstantiated statements, to see what activities they are prevented on religious grounds to consider that the employer the existence of "non-alcoholic" activity.


The case:
of his faith and practicing Muslim plaintiff was employed since 1994 in the department store of the defendant, and is initially in the car wash and later, according to employment as a shop assistance "in the beverage industry, which remained in the previous proceedings, whether there already had to deal with alcoholic beverages and would have had to deal.
2007 was transferred to the fresh produce department, but it turned out by a number of diseases, that the low temperatures were in the fresh produce area, the cause of his frequent absences. Thereupon, the defendant stated in again to work in the beverage department.

The plaintiff refused to make this arrangement episode, and relied on his faith, which prohibits him jeweden use of alcohol. After several unsuccessful calls, the defendant announced the employment relationship without notice and very tidy as a precaution on time.

made with the dismissal action brought by the plaintiff claims that his re-transfer is contrary to the beverage department against his fundamental right to freedom of religion under Article 4 of the Constitution. The Qur'an prohibits any use of alcohol.
The defendant had not demonstrated that they could not use him in an area where he could work without a religious conflict.
The plaintiff failed before the Labour Court, the LAG firmly placed the ineffectiveness of the extraordinary dismissal, but held the notice of dismissal is justified. The
aside the decision of the BAG and referred the case back to the LAG.


The reasons:
It could yet be a final decision on whether the refusal of the plaintiff to work in the beverage department, a notice

principle could justify such a refusal a worker's a worker to perform a task that is part of the contractual obligations, even justify a termination if it is done for religious reasons. The prerequisite for this is, however, that no obvious alternative employment opportunities are given.

workers have in such a case, the employers like to inform you what exactly the religious reasons, and explain what work they could not do for religious reasons.
If the possibility of contractual employment, which fell to the religious restrictions into account, should the employee about the employee such work would be assigned ..

stand by these principles in the dispute not yet clear whether the refusal to work to justify a dismissal of the plaintiff. The plaintiff had a "shop help" in the retail market grds. also expect the allocation of such work requiring the use of alcohol. His statements can not yet see clearly enough what activities it prohibits his religious beliefs. Accordingly, it can not yet conclusively determined whether the defendant has been able to transfer to the plaintiff other jobs.

(BAG 02.24.2011, 2 AZR 636/09)

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disabled applicants for jobs in public services when not invited to interview may smart money demand

If the cast of judges shall not advance a particular grade level has been set to mandatory, all severely disabled applicants are qualified for the judges office (= 2 Jur State Examination) gem. § 82 sentence 2, 3 SGB IX. be invited to interview. A violation of this requirement is a presumption fact within the meaning of § 22 AGG, namely to the effect that there is discrimination because of disability. Unless the employer / employer to rebut that presumption, he has to the severely disabled applicants according to the severely disabled candidate. § 15 AGG pay a angemessne compensation.

The case:
The applicant is treated as severely disabled people.
Both state law, they were divided by the total rating of "satisfactory" and applied in Baden-Wuerttemberg and Bavaria unsuccessfully as a setting in the higher judicial service Judge. Two countries, they invited the ground not to attend a personal interview, it met with their exam grades not the requirements.

The applicant then claimed compensation according to § 15 para 2 AGG. The employer, it had to invite because of their equality with severely disabled people to interview. Since he had not done it, acc. § 22 AGG at a disadvantage suspect because of the disability. Both claims for payment of compensation amounting to max. three months' salary (€ 12,000 each) were dismissed by the courts ..

The Federal Administrative Court annulled that decision and remanded the proceedings to determine the proper amount of a defendant by the countries to be paid compensation to the VGH VGH Mannheim and Munich.

Reason: :
The applicant has acc. § 15 para 2 AGG entitled to appropriate compensation, because they meet the statutory obligation for public sector employers / employer is required to § 82 sentence 2 and 3 SGB IX is not an interview is invited.

The invitation of disabled applicants for an interview is only gem. § 82 sentence 3 SGB IX expendable when they obviously lack professional competence. But this was not so:
The applicant had not disputed the qualifications for judicial office. On the exam grades were allowed to leave not the defendant employer. For exam grades are relevant only been established when a particular grade level both already before the recruitment process and binding in a job description for the vacant position (n). This was not for judges in Baden-Württemberg Bayern still in the case.

was why it unlawful not to invite the applicant to an interview, so that gem. § 22 AGG, the legal presumption is established that the applicant was discriminated against by denial of the statutory betterment. The defendants have not rebutted in the processes that presumption. Consequently, the applicant has
gem. § 15 para 2 AGG Schmerzensgelanspruch one, regardless of whether the applicant as a result of discrimination in terms of choice because of its notes had not been set.

The cases were referred back to the VGH and VGH Mannheim, Munich, since - logically, from their different point of view - no findings have taken for the level of compensation.

(Federal Administrative Court, decision of 03.03.2011, 5 C 15 and 16.10)

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